Raja Saeed Akrm Khan, J.- The supra review petitions have been filed for review of the judgment passed by this Court on 07.03.2017, whereby while partly accepting the appeal, the sentence of life imprisonment awarded to the convict-petitioner, herein, Zaheer Ahmed, has been converted into sentence already undergone, whereas, the appeal filed by the complainant-petitioner, herein, Sairan Bibi has been dismissed. As both the titled review petitions arise out of the same judgment, therefore, we intend to dispose of the same through this single judgment.
2. Brief facts necessary for disposal of the instant petitions are that a case in the offences under sections, 302, 341 APC read with section 17(3) & (4) of the Offence against Property (Enforcement of Hudood), Act, 1985, was registered against Zaheer Ahmed, convict-petitioner, herein, in review petition No.3/17 and another upon the complaint lodged by Mst. Sairan Bibi, petitioner, herein, in review petition No.2/17. After registration of the case, the police conducted the investigation. On 10.12.2003, a challan was presented in the Court of competent jurisdiction. On 24.1.2004, the petitioner along with another convict, were examined under section 242, Cr.P.C., wherein they pleaded not guilty and opted for the trial of the case. The learned trial Court directed the prosecution to produce evidence in support of the case. After completion of prosecution evidence, the learned District Court Mirpur made over the case to the learned Additional District Criminal Court Mirpur, who after hearing the parties, sentenced the convicts and awarded under sections 396, APC, with 10/10 years rigorous imprisonment and Rs. 1000,000/- as fine to each and under section 314, APC, 1/1 year simple imprisonment and Rs.500/- as fine to each with a condition that in default of payment of fine they shall undergo further sentence of 6/6 months simple imprisonment. Against the aforesaid judgment of the trial Court, appeals were preferred by the convicts and the complaint party before the Shariat Court. The learned Shariat Court vide consolidated judgment dated 8.4.2010, while accepting the appeal filed by the heirs of the deceased, awarded death sentence as Hadd to the convicts, upon which appeals were filed before this Court. This Court remanded the case to the learned District Criminal Court Mirpur for again recording the statements under section 342, Cr.P.C to the extent of convicts, Muhammad Javed and Zaheer Ahmed. The learned District Criminal Court Mirpur, after due process of law, awarded death sentence as Tazir and fine of Rs. 100,000/- each to convicts Muhammad Javed and Zaheer Ahmed and under section 341, APC, 1/1 month simple imprisonment and under section 13 of the Arms Ordinance, 1965, 2/2 years simple imprisonment and fine of Rs.10,000/- to each. In case of non-payment of the fine, further sentence of 6/6 months simple imprisonment was awarded. It was also ordered that the convicts shall pay Rs.10,00,000/- (500,000/- each) as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. A reference was also sent by the trial Court to the learned Shariat Court for implementation of the death sentence under section 31 of the Islamic Penal Laws Enforcement Act, 1974.
Against the aforesaid judgment, an appeal was filed before the Shariat Court. The learned Shariat Court remanded the case to the trial Court with the observations that as one of the member i.e. District & Sessions Judge had already given his findings as member of the Court at that time as Additional District & Sessions Judge, therefore, it was not appropriate for him to give findings once again. On this, the learned Court below after hearing the parties awarded death sentence as Tazirt to Zaheer Ahmed and Muhammad Javed, convicts under section 396, APC, 1/1 month simple imprisonment under section 341, APC 2/2 years simple imprisonment and fine of Rs. 10,000/- under section 13 of the Arms Ordinance, 1965, with a condition that in case of non- payment of fine they shall undergo further imprisonment of 6/6 months and ordered for payment of Rs.
500,000/- each under section 544-A, Cr.P.C. as compensation to be period to the legal heirs of the deceased vide its judgment dated 24.9.2013. Feeling aggrieved, Muhammad Javed and Zaher Ahmed, convicts and the complainant party filed separate appeals before the Sharit Court. The learned Shariat Court while partly accepting the appeals of convicts modified the judgment of the trial Court and converted the death sentence into life imprisonment. The appeal filed by the heirs of the deceased was dismissed and the reference sent by the trial Court was answered accordingly. Against the judgment of the Shariat Court dated 19.11.2015, appeals were preferred by the convicts and the complainant. The appeal filed by the convicts Zaheer Ahmed and Muhammad Javed were partly accepted and sentence of life imprisonment awarded to them was altered into sentence already undergone and the appeal filed by Sairan Bibi, complainant-petitioner, herein, was dismissed, hence, these review petitions.
3. Sardar Muhammad Azam Khan, Advocate, the learned counsel for the petitioners, Sairan Bibi & others , while addressing arguments in support of review petition No.2/17 submitted that the offences committed by the respondents falls in Haraabah as defined under section 15 of the Offence against Property (Enforcement of Hudood) Act, 1985, (hereinafter to be referred as Act 1985) but the learned District Criminal Court as well as the Shariat Court wrongly convicted the respondents under section 396, APC. This aspect of the case escaped the notice of this Court while passing the judgment under review. He added that act 1985, being a special law overrides the general law. He further added that this Court while handling down the judgment under review observed that the involvement of the convicts in commission of the offence cannot be ruled out and at the same time held that the convicts do not deserve the major penalty of death or life imprisonment which is an error apparent on the face of the judgment under review. He further added that under section 17 (4) of the Act 1985, no other sentence except death or life imprisonment can be awarded but this important aspect of the case escaped the notice of the Court while drafting the judgment under review. He relied upon the cases reported as Abdul Rehman & another vs. Muhammad Mushtaq & another [2007 SCR 100] and Ahsaan Azeem and 2 others vs. The State & 2 others [14 SCR 735].
4. Mr. Abdul Majeed Mallick, Advocate, the learned counsel for the petitioner in review petition No.3/17 argued the sole point that in view of the provisions of section 35, Cr.P.C., when a person is convicted in one trial of two or more offences and the aggregate of punishment awarded to him comes to more than 14 years, the punishment shall run concurrently and not consecutively, but the Courts below have not recorded any findings in this regard. This Court also overlooked this aspect while handing down the judgment under review which is an error apparent on the face of the judgement, thus, the impugned judgment is liable to be reviewed to this extent.
5. We have heard the respective arguments advanced by the learned counsel for the petitioners in support of their respective review petitions. The sole argument of the learned counsel for the petitioners, Sairan Bibi and others, was that under section 17 (4) of Act, 1985, only the sentence of death or imprisonment for life, have been provided, whereas, this Court altered the sentence of life imprisonment into the sentence already undergone, which in view of the provisions of section (supra), is unwarranted. It may be stated here that although, under section 17 (4) of Act, 1985, the convict guilty of harrabah in the course of which he commits murder shall be punished with death imposed as 'hadd' , however, if the standard required for awarding death sentence as 'hadd' is not available, the Court can award the sentence of imprisonment not less than four years as 'tazir' under section 396, APC. In the case in hand, the convicts were awarded the sentence by the Court liable to 'tazir'. Section 20 of Act 1985, deals with the punishment of 'harrabah' liable to 'tazir' and in the said statutory provision, it has been made abundantly clear that in case of commission of 'harrabah' not liable to the punishment provided under section 17 or for which proof in either of forms mentioned in section 7 of Act 1985 is not available, or for which punishment of amputation or death may not be imposed, shall be awarded the punishment provided in the Penal Code for such an offence. For better appreciation, section 20 of the Act, 1985 is reproduced as under:- "20. Punishment for harrabah liable to ta'zir.- Whoever commits harrabah which is not liable to the punishment provided for in Section 17 or for which proof in either of the forms mentioned in Section 7 is not available, or for which punishment of amputation or death may not be imposed or enforced under this Act shall be awarded the punishment provided in the Penal Code (Act XLV of 1860), for the offence of dacoity, robbery or extortion, as the case may be."
The convicts were not awarded punishment under Section 17 (4) of Act 1985 rather they were punished under section 396, APC, therefore, the argument of the learned counsel for the petitioner, in this regard, without having any force, is hereby repelled.
6. While adverting to the sole argument advanced by Mr. Abdul Majeed Mallick, Advocate, the learned counsel for the petitioner in review petition No.3/17 that the sentences awarded to the convict were minor in nature, therefore, the same should have been ordered to be run concurrently instead of consecutively, it may be stated here that under section 35, Cr.P.C., when a person is convicted at one trial of two or more offences and the trial Court \ sentenced him for separate punishments prescribed therefore, and such punishments when consisting of imprisonment less than 14 years in aggregate, will run consecutively unless the Court directs that the punishments shall run concurrently. Whereas, punishments the consisting of imprisonment of more than 14 years in aggregate, will run concurrently irrespective of the fact; whether, there is any direction of the Court in this regard or not. In the case in hand the Court concerned awarded death sentence as Tazir to Zaheer Ahmed, convict under section 396, APC, 1 month simple imprisonment under section 341, APC, 2 years simple imprisonment and fine of Rs.10,000/-under section 13 of the Arms Ordinance, 1965, with a condition that in case of non-payment of fine, he shall undergo further imprisonment of 6 months and also ordered for payment of Rs.500,000/- under section 544-A, Cr.P.C. as compensation to be paid to the legal heirs of the deceased. The petitioner was awarded sentences for more than one offence in a single trial. The Shariat Court converted the death sentence into life imprisonment. The punishment of sentences awarded to the convict is more than 14 years imprisonment in aggregate. The trial Court as well as the Shariat Court did not direct that the substantive sentences of imprisonment for the different offences will run concurrently or consecutively. Surely, the sentences will take effect concurrently, as section 35 (2), Cr.P.C., clearly postulates that in no case, sentences awarded to convict in one trial, the aggregate of which is 14 years or more, will take effect consecutively rather the same will take effect concurrently. Guidance may be sought from a case reported as Muhammad Ikhlas vs. Ehtesab Bureau Azad Jammu & Kashmir through Chairman and 3 others [2015 SCR 1430], wherein, this Court has observed as under:- "5. We have considered the arguments of the learned counsel for the parties and also examined the record made available. Admittedly, the trial Court has not issued any direction whether the awarded punishments will run consecutively, one after expiration of the other or the punishments awarded have to run concurrently. The statutory provision of proviso (a) of section 35 of the Cr. P.C., prohibits that in no case, a person shall be sentenced to imprisonment longer than the period of 14 years. In this case, aggregate punishment awarded to the petitioner comes to 33 years and if it is deemed as consecutive surely it is not allowed in view of proviso (a) of section 35 of the Cr. P.C. Absence of any direction of trial Court whether the punishment awarded has to run consecutively or concurrently, the obvious consequences have to be considered. If it is deemed that intention of the Court is consecutive running of the punishment, it will amount to violate the statutory provision of proviso (a) of section 35 of the Cr.P.C. Thus, the judgments cannot be implemented in a manner which violates the statutory provision. The only alternate is running of punishment concurrently in such case violation of statutory provision can be avoided. "
In view of the statutory provision and the case law referred to hereinabove, there is no ambiguity in our minds that according to peculiar facts of this case, awarded punishment shall have to run concurrently.
7. The case law referred to and relied upon by the learned counsel for the petitioner in review petition No.2/2017 having distinguishable facts and circumstances need not be considered or discussed. The petitioners failed to point out any error apparent on the face of the judgment under review. For the foregoing discussion of the facts and law, review petition No.03 of 2017 is disposed of in the terms indicated in paragraph No.6 of the instant order, whereas, review petition No.02 of 2017, having no force, is hereby dismissed.